Former Chair Seeks State Takeover Of IWC

The former chair of the Branford Inland Wetlands Commission has asked the state’s energy and environmental protection commissioner to take over the function of the agency.

He proposed that the commissioner also place a moratorium on commercial development until an investigation is undertaken into the replacement of former members of the wetlands commission.

In a three-page letter to Rob Klee, commissioner of Connecticut’s Department of Energy and Environmental Protection (DEEP), Danny Shapiro, who served as Inland Wetlands Commission chair for 22 years, asked Klee to intervene on behalf of an IWC ​“that has been battered. Specifically I am hoping that you will see fit to have the State take on the Commission’s function and place a moratorium on commercial development until this matter in our Town can be investigated.” 

In his letter to Klee, sent late last month, Shapiro described how First Selectman Jamie Cosgrove, who ran for office in 2013 on the platform of bringing a Costco warehouse store to Branford, has systematically removed commission experts in the area of wetland ecology and environmental law, including Dr. Richard Orson, one of the leading experts in the state. Click here and here to read the stories.

“We will be reviewing the letter,” Dennis Schain, director of communications for DEEP, told the Eagle.

“We need to determine if there are issues raised within our jurisdiction and if so what, if any, action would be appropriate,” he said.
 
In less than a year, Cosgrove has appointed replacements for six IWC members whose terms expired, including Shapiro, who is an engineer. All said they wanted to continue to serve on the commission. Cosgrove and Selectman Joe Higgins, Jr. provided the second vote. Dissenting was Third Selectman Jack Ahern.

Reached today, Cosgrove said, “I have full confidence in the current commission.” He said he could not comment further because he had not seen the letter.

Shapiro was also critical of Town Attorney Bill Aniskovich’s role in the Costco process, asserting he had a clear conflict of interest because he nominated Cosgrove for first selectman in 2013, ran his campaign, supported his platform to bring Costco to Branford and was subsequently appointed town attorney. 

The Eagle asked Aniskovich, a former state senator, for his reaction to Shapiro’s request that the state take over the IWC agency.  He paused before answering. “I think that I am not going to comment on it. We will wait to see what the state does with the request. And I will have a comment if necessary at that point.” He said his response to Shapiro’s conflict of interest assertions would be the same.  “I have no comment on that either,” he said.

Shapiro wrote that “the Commission had over 90 collective years of experience when Mr. Cosgrove was elected First Selectman in 2013.  Since then, he said, “Mr. Cosgrove has acted to remove all senior Commissioners and all Commissioners with an expertise in Wetland Ecology, Environmental Law and a depth of intimate experience with Branford’s Inland Wetlands.”  This includes Dr. Orson, “who is well renowned in State for his Wetland and Soil Science expertise,” he said in his letter, which the Eagle obtained. 

Costco first submitted its application to the Planning & Zoning Commission in February, 2015. At the time it presented a Planned Development District (PDD) application. The 44-acre PDD was narrowly approved by a 3-2 vote in July, 2015. The permit has another year before it expires.
Under the PDD, which enabled the P&Z to vote first instead of the usual order that had IWC vote first, Costco would develop a 158,000-square-foot store, along with a 16-pump gas station on land now owned by the Wayne Cooke family. The project also provides for an additional seven retail stores nearby. 

At a Board of Selectmen (BOS) meeting on June 1, Cosgrove and Higgins, both Republicans, voted to put four new appointees on the commission, rather than reappoint Shapiro and Attorney James Killelea, two of the three people whose terms expired May 31. One appointment filled a vacancy created by the death of a longtime commissioner. Selectman Higgins made no public comments about the issues or the appointees. Overall, of the seven new regular and alternate appointees, five are Republicans and two are unaffiliated. 

Cosgrove Guts IWC in June

Shapiro first outlined his intention to call upon the DEEP commissioner in a statement read aloud by Selectman Jack Ahern at the same BOS meeting on June 1. Shapiro was traveling out of the country at the time.

Cosgrove’s actions in gutting the commission sparked criticism from several people in the BOS crowd of about 50 who attended the meeting, including Janet Riesman, who lives near the proposed Costco development. ​“It shouldn’t be a matter of cronyism, but a matter of qualifications,” Riesman said of the appointees to the IWC. ​“If there is not greater impartiality and greater openness in the making of appointments in the future, the Board of Selectmen looks like a kangaroo court where one man can stack the deck with players under his control and under his thumb.”

Cosgrove replied to Riesman: ​“Our government is made up of volunteers, citizens that want to come forward and serve. The qualifications that I look for, there’s no qualifications stated in the Town Charter, however I try to look for people who look at things reasonably and make an impartial decision. We do have regulations and mandates that need to be followed and all I ask of any commission member is to apply the regulations as written. That’s all I ask.”

From Shapiro’s perspective, Cosgrove along with other top elected officials, the town attorney and the top representatives for Costco acted behind the scenes to circumvent and undermine the commission’s authority and to prevent it from functioning as it had in the past in order ​“to achieve a political and economic goal,” the arrival of a Costco store in Branford. 

From Cosgrove’s perspective, it was time to change the balance of the IWC, to make it more receptive to economic growth and development. In selecting new members for the new IWC, Cosgrove included two builders and the current chair of the Zoning Board of Appeals. From Aniskovich’s perspective, he was trying to work with Shapiro and meet with him but Shapiro would not do so, according to those familiar with the dynamics of the situation. From Shapiro’s perspective, Aniskovich (pictured) denied him and the commission the expertise of a land-use attorney during the Costco process. 

Shapiro Letter Outlines Cosgrove Campaign Promises

In his letter to DEEP, Shapiro noted Cosgrove’s political commitment to bring a Costco to Branford, first in 2013 and again in 2015. ​“To achieve that goal he needed approval from the Town’s regulatory boards. Cosgrove was aided in his election by Atty. Aniskovich who nominated Cosgrove for candidate for 1st Selectman, ran his campaign and subsequently was appointed Town Atty.” In 2013 Aniskovich became of counsel to the law firm of Brenner, Saltzman & Wallman in New Haven. He works primarily as CEO of the Stonington Institute for Behavioral Health in Stonington, a position he has had since 2004.

“It is my belief that Atty. Aniskovich, previously a State Senator and Mr. Cosgrove, previously the head of Cosgrove Construction, have sought to control the Inland Wetlands Commission by changing how it functions. These actions are a detriment to the wetlands and downstream water courses of Branford and beyond. 

“During the recent Inland Wetlands Public hearings for Costco Atty. Aniskovich appointed himself counsel for the Wetlands Commission despite his clear conflict of interest. While the law firm had an excellent land use attorney Carolyn W. Kone, who was at Aniskovich’s side during a request for a zone change in front of the Planning and Zoning phase of Costco hearings, she was not present during any of the Inland Wetland hearings or meetings on the Costco application. Aniskovich was counsel in charge despite a clear conflict of interest that prevented him from acting on behalf of the IW Commission; instead his goal was to act on behalf of Costco and its arrival in Branford as promised by the First Selectman.

“As Chair of the Commission I made numerous requests to the Selectman and Atty. Aniskovich for access to independent, unbiased and expert land use counsel (but) he repeatedly blocked that request. At one point, acting as the town attorney, he demonstrated his clear bias by inappropriately executing an FOIA [Freedom of Information Act request] on the IWC, allowing inappropriate information to be released to a local blogger in the middle of the Costco public hearing.”

(The Eagle has learned that Thomas P. Cody, (pictured) the attorney representing Costco, asked Cosgrove in his own March FOIA request for a duplicate set of the same FOIA materials. Cosgrove quickly complied.

Cody withdrew the Costco application on April 26. Shapiro said in his letter he did so in order to ​“re-apply after more Commissioners could be replaced with friends of the development community, i.e. those that either worked for construction companies or were obviously favorable to the intended applicant.”

“It should be noted that for over 25 years the Branford Inland Wetlands Commission has fairly and uniformly applied its regulations throughout our town. The appearance of the development plan including Costco and 6 other buildings was extremely retrograde. We have not seen such a plan advanced for over 20 years that paid no respect to wetland review areas, excessed thermally charged storm water downstream and had numerous unnecessary wetlands crossing. 

“The applicants were all advised that such practices were not in keeping with modern standards and for the first time in my memory all staff recommendations were ignored. The plan as proffered would not have been successful in any of the last 25 years. Both Cosgrove and Aniskovich pressured the Commission to move forward and sought to weaken the Commission through all means possible, removing Wetlands expertise from the commission, unfairly blocking access to fair independent expert counsel, seeking to cut off communication between 3rd party hired experts.

Finally the most obvious was the behind-the-scenes collusion with the applicants intended to weaken and undermine the Commission’s authority in order to achieve a political and economic goal.”

Revising the Regs

As his term was drawing to a close in May, Shapiro moved to have the commission vote on the revised set of regulations, which had been under review by the IWC for the previous 18 months. The IWC voted 4 – 3 to adopt the revised set of regulations. Four long-term members provided the majority vote, including Shapiro, James Killelea, Suzanne Botta, and John Rusatsky. Shapiro and Killelea were not re-appointed; Botta and Rusatsky’s terms are up in May, 2017. 

The vote to adopt the regulations elicited a harsh reaction from Cosgrove the day after the May 12 IWC meeting in which the regulations were approved. Cosgrove apparently believed that the vote would be delayed, not acted upon. At the May 12 meeting, Peter Bassermann, then a member of the IWC and not yet elected the chair, suggested a delay based on the expectation that the latest version of the state’s model Inland Wetlands regulations might be forthcoming in early summer. While the legal review was not produced, the IWC took a vote anyway and the revised regulations were adopted. Shapiro observed at one point that a legal review for proposed changes to regulations is not required by law and had not been done in the past. Aniskovich agrees with Shapiro on this point.

Nonetheless, the next day Cosgrove called the vote ​“an unprecedented abuse of power” because the IWC did not wait for a legal review of the regulations before voting at its meeting.

Aniskovich had been asked by the IWC to conduct a legal review of the revised regulations after attorneys representing four other developers, including those for Costco, sought it. But he did not produce the legal analysis the IWC requested because he apparently thought a delay in the process would occur. 

Lawyers Weigh In

During the course of the 18 months the regulations were under revision, no attorney representing any developer showed up at any public IWC meeting to discuss or comment on the regulations. Only Bill Horne, a leading town environmentalist and Jacey Wyatt, a member of the Parks & Open Space Authority, attended the meetings. Click here to read the story.

In his letter, Shapiro told Klee that he believed Cosgrove and Aniskovich ​“colluded with” developers in town to show up with their attorneys at a recent meeting to protest the regulations. Each attorney representing each developer in sequence asked at the public meeting that the proposed regulations be ​“referred to Bill Aniskovich” for review. The commission now composed of new members favorable to Cosgrove motioned to have a ​“review by legal land use expert chosen by Bill Aniskovich.” 

Shapiro said ​“Atty Aniskovich elected not to perform such a review and instead tried to pressure the Commission to wait, obviously until more commissioners could be removed and replaced.” Aniskovich said it was his understanding he could wait because new state regulations were soon to be announced.

After the 4 – 3 vote approving the revised regulations came on May 12, Aniskovich was ​“incensed,” Shapiro said. So was Cosgrove, who issued a press release denouncing the IWC’s decision to adopt the revised regulations. 

“I believe Cosgrove is aware of the State mandated authority of local Inland Wetlands Commissions and their mandate to revise regulations, rather I feel his comments reflect his feelings that he should be able to control all aspects of the Commission’s proceedings,” Shapiro wrote in his letter. 
​“Since Cosgrove acted to remove me and others from the IWC, another development has occurred. As I understand it, the four attorneys who came before us on May 12, all representing the same developers, are now appealing the regulations adopted….”

The appeal filed by Attorney Janet P. Brooks, a well-known land use attorney, on behalf of 595 Corporate Circle, which oversees the Cooke land where Costco wants to build. She sought to move the appeals from the New Haven Superior Court to the Land Use Court in Hartford, which is overseen by Superior Court Judge Marshall K. Berger, Jr. On January 5 Judge Berger officially ordered at least two of the appeals, including 595 Corporate Circle, transferred to his land use docket, Aniskovich told the Eagle.

​“For efficiency and judicial economy, it would be best to have them all in one place,” he said of the pending appeals.

Shapiro said in his letter to Klee, ​“Before this matter is actually litigated,” he said, ​“I believe it is time for the State to examine the proceedings of our Town. The gratuitous law suits and the possible out-of-court settlement that will transpire is all the subterfuge of the current administration who should not be allowed to roll back these regulations to whatever point they wish.” 

Whether rolling back the regulations happens or not was likely discussed last night when the Inland Wetlands Commission went into executive session for 90 minutes at a regularly scheduled meeting at Canoe Brook Senior Center. The commission heard from Aniskovich and this time from Kone, his firm’s expert on land use matters behind closed doors. The executive session was to ​“discuss strategy and negotiations” regarding the four appeals.

When the commission emerged from executive session the chair made no public comment but it appears that Kone and Aniskovich intend to aggressively represent the commission. 

As far as another item on the agenda, one dealing with appointing members to serve on a new regulations review subcommittee, well, that was tabled given the fact that the appeals are under review before a state judge. 

Shapiro has asked that Klee take over the town’s IW review process ​“until the issues raised here are resolved. In addition, I believe a moratorium on Commercial Construction should be placed until the local Wetland’s Commission is once again a fair, independent and sufficiently resourced body. It is my sincere hope that the State will take these actions after due consideration of how our local process has been corrupted,” Shapiro wrote.

Then he signed his letter Daniel Shapiro, ​“Chairman Branford Inland Wetlands Commission 1994 – 2016.”
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